What is Discovery in an Illinois Divorce Case?

What is Discovery?

Discovery is the process through which attorneys, prior to a trial, obtain information about a case they will be involved in. They usually do this through such actions as sending and receiving series of questions (called Interrogatories) and their answers to and from the other parties, sending and receiving relevant documents (called document production), sending and receiving certain objects relevant to the case, and sending and receiving medical, law enforcement, or other relevant records (by way of subpoenas). Discovery is optional, but always recommended to ensure due diligence has been completed prior to entertaining any settlement proposals. Discovery has very specific rules and timelines that are detailed in the Illinois Supreme Court Rules. While all discovery requests are serious, some might potentially create adverse consequences should a response not be completed and sent in the adequate timeframe. One such example is a “Request for Admissions”. If a request for admissions is not responded to timely (pursuant to the timeline provided in Illinois Supreme Court Rules) then your response could be deemed as admitted, and this can prove to be extremely adverse for your Illinois divorce or parentage case. If you have been dealing with an Illinois family law case and have received discovery papers in the mail or in person, please call us now to schedule a free consultation with an experienced Illinois divorce and parentage attorney about your legal issue.

What is a Motion?

Illinois courts have defined a “motion” as a written or verbal request of a court order for a particular action or result in your favor. A “motion” must be connected to, and filed with the court as part of, a legal action that has already been started. While there are hundreds of different motions a party can file over the course of their Illinois divorce, one example would be a “motion for child support”. In this type of motion, you are asking the court to grant you child support, with the motion containing both the request and the reasons for the request. Once a party files a motion, the other party will generally receive time to respond to it, should they so choose. Depending on the type of motion filed, the judge may then decide to conduct a hearing or otherwise order another way to move forward with the request.

What is an Order?

An “order” is an instruction by a court for you to do something. This usually occurs when the judge decides on a particular course of action for your Illinois divorce or parentage case. For instance, a “no contact order” is an order by the Court that a person is forbidden from making certain forms of contact with another person. An “order” to pay child support is an order that a person pay a specified amount of money to another person for the support of a child or multiple children. There are generally a lot of court orders if your Illinois divorce case or Illinois parentage case is contested or litigated. If the court orders you to do something, you are required by law to do it. Failure to follow a court order can have very dire consequences, including being held in contempt of court, which can result in jail time. See below for further explanation on contempt of court.

What is an “Affidavit?”

An “affidavit” is a document containing statements which you under oath in front of a notary public. Since you are making this statement under oath, any lie or intentional omission of the truth may result in the penalties of perjury, which is a very serious offense. Illinois courts have stated that an affidavit is a substitute for testimony you would personally deliver in a courtroom. This is why this is very important. They also have required both that the things you say in an affidavit are things you could testify about in court and that you need to indicate the source(s) and availability of the evidence about which you make statements in your sworn affidavit. Affidavits can be used to prove a number of different things for your divorce or if you’re facing a situation where someone is asking you for an affidavit to prove someone else’s character. Illinois law describes this in detail. Under 735 ILCS 5/1-109, “Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section. Whenever any such pleading, affidavit or other document is so certified, the several matters stated shall be stated positively or upon information and belief only, according to the fact. The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath. Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.” signing an affidavit can have serious legal consequences. If you are faced with any such issue, please call us now to schedule a free consultation with an experienced Illinois divorce and parentage attorney about your legal issue.

Why do we fill out the financial affidavit?

People going through a Cook County divorce or parentage case fill out a financial affidavit to let the court know how to accurately have an understanding of the parties’ financial picture. This will help determine things like child support and spousal maintenance to be awarded and also provide an idea regarding the division of marital property. In April of 2016, the Illinois Supreme Court approved a standard financial affidavit form that will be accepted by all Illinois Circuit Courts—the court where you would actually go through your divorce process. Cook County Local Court Rules also state that one party may not request discovery from another party as part of a case unless the requesting party has first submitted to the other party a completed financial affidavit. Here is a link for a blank financial affidavit: http://www.illinoiscourts.gov/forms/approved/divorce/Financial_Affidavit_Suite_Approved.pdf . It is available in English, Spanish, Korean, Chinese, Arabic, Russian, and Polish. Please download one right now and try to complete it if you are going through a divorce or are contemplating divorce. Cook County Rule 13.3.1 also requires that both parties complete one. Completing one that is not completely accurate or has information that is missing or misleading can have serious legal consequences. If you have been ordered to complete a financial affidavit and are having difficulty, please call us now to schedule a free consultation with an experienced Cook County divorce and parentage attorney about your legal issue.

What happens after I fill out the financial affidavit?

After you fill out your financial affidavit, you are required to send it to the opposing attorney or party (depending on if they have an attorney or not). They too will be required to send their affidavit to you. Once both parties exchange financial affidavits, the attorneys can look at the assets and liabilities of the parties, the income and expenses, and determine what amount of support should be awarded to one, or what type of spousal maintenance should be awarded. Cook County divorces and parentage cases are very rule driven when it comes to support obligations. Illinois has a specific rule for calculating the amount and duration of spousal maintenance to be paid. Similarly, Illinois had a child support law that has recently been replaced with a newer child support law. The new child support law states, in part, that parties are “To calculate child support based upon the parent’s combined adjusted net income estimated to have been allocated to the child if the parents and children were living in an intact household”. 750 ILCS 5/505 (a)(1)(D). What this means is that an attorney will need income information from both parties to calculate child support for the parties’ children. The old law used to use the Obligor’s income only and take a certain percentage out of it as and for child support. However now, it’s changed and income from both parties is needed to calculate child support. To discuss your Cook County divorce or parentage case, please call us now to schedule a free consultation with an experienced Illinois divorce and parentage attorney about your legal issue.

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